Norma Alicia Campoverde-Panora v. U.S. Attorney General

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10131
Non-Argument Calendar
____________________
NORMA ALICIA CAMPOVERDE-PANORA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A208-889-234
____________________
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2 Opinion of the Court 21-10131
Before JILL PRYOR, LUCK, and BLACK, Circuit Judges.
PER CURIAM:
Norma Alicia Campoverde-Panora seeks review of the
Board of Immigration Appeals’ (BIA) final order affirming the Im-
migration Judge’s (IJ) denial of her application for asylum and with-
holding of removal under the Immigration and Nationality Act
(INA). Campoverde-Panora claims the BIA violated her due pro-
cess rights by failing to consider whether she was persecuted on
account of membership in a particular social group (PSG) that she
articulated for the first time on appeal to the BIA. Noting that she
had no attorney at her merits hearing before the IJ, she contends
the BIA’s requirement that an asylum applicant provide an exact
delineation of her PSG before the IJ disregards the normal rules re-
garding waiver and sets an often impossibly high bar for pro se ap-
plicants to satisfy. After review, 1 we deny her petition.
To establish a due process violation in removal proceedings,
“aliens must show that they were deprived of liberty without due
process of law, and that the asserted errors caused them substantial
1 We review only the decision of the BIA, unless the BIA expressly adopted
the IJ’s decision. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir.
2016). “We review constitutional challenges de novo.” Lonyem v. U.S. Att'y
Gen., 352 F.3d 1338, 1341 (11th Cir. 2003). “To the extent that the BIA’s deci-
sion was based on a legal determination, [our] review is de novo.” D-Mu-
humed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004).
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21-10131 Opinion of the Court 3
prejudice.” Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341-42
(11th Cir. 2003). Even when an agency fails to follow its own rules
or regulations, a due process claim does not automatically arise be-
cause the root requirements of due process require only that one
be given notice and an opportunity to be heard. Hakki v. Sec’y,
Dep’t of Veteran Affs., 7 F.4th 1012, 1030 n.13 (11th Cir. 2021). As
a rule of practice, appellate courts generally will not consider a legal
issue unless it was presented to the trial court. Dean Witter Reyn-
olds, Inc. v. Fernandez, 741 F.2d 355, 360 (11th Cir. 1984); see also
Yakus v. United States, 321 U.S. 414, 444 (1944) (“No procedural
principle is more familiar to this Court than that a . . . right may be
forfeited in criminal as well as civil cases by the failure to make
timely assertion of the right before a tribunal having jurisdiction to
determine it.”). We have upheld such a rule under the rationale
that it would waste resources and “deviate from the essential na-
ture, purpose, and competence of an appellate court” to address
fact-bound issues for the first time on appeal. Access Now, Inc. v.
Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
Absent constitutional constraints, “administrative agencies
should be free to fashion their own rules of procedure and to pur-
sue methods of inquiry capable of permitting them to discharge
their multitudinous duties.” Lonyem, 352 F.3d at 1342 (quotation
marks omitted). In discharging its duty, the BIA has established
case law that parties may not make new legal arguments for the
first time on appeal. See, e.g., Matter of J-Y-C-, 24 I. & N. Dec. 260,
261 n.1 (BIA 2007). Further, BIA case law requires an applicant to
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4 Opinion of the Court 21-10131
delineate to the IJ the PSG upon which she is relying in making her
claim. See Matter of A-T-, 25 I. & N. Dec. 4, 10 (BIA 2008). Finally,
the BIA cannot “engage in fact finding in the course of deciding
cases.” 8 C.F.R. § 1003.1(d)(3).
The BIA did not violate Campoverde-Panora’s due process
rights by refusing to consider the asserted PSG that she articulated
for the first time on appeal. Campoverde-Panora had the burden
of proving she was a refugee, meaning she was or would be perse-
cuted on account of a protected ground. See Diallo v. U.S. Att’y
Gen., 596 F.3d 1329, 1332 (11th Cir. 2010) (stating the burden is on
the asylum applicant to establish she is a refugee). Campoverde-
Panora’s pro se status did not excuse her from her burden of artic-
ulating the basis of the persecution she assertedly suffered or
feared. 2 See Melton v. Abston, 841 F.3d 1207, 1233 n.5 (11th Cir.
2016) abrogated on other grounds by Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) (holding a pro se litigant waived the right to
assert a defense after failing to raise it first in the district court).
Permitting an applicant to articulate a new PSG on appeal
would encourage sandbagging, and would often necessitate re-
mands for further factfinding, as the IJ will not have made a specific
2 Campoverde-Panora filed her application for asylum, withholding of re-
moval, and protection under the CAT with assistance of counsel, and asserted
a fear of persecution on account of her membership in a PSG. Before the mer-
its hearing, the IJ granted a motion to withdraw as counsel filed by Cam-
poverde-Panora’s attorney and Campoverde-Panora appeared pro se at the
merits hearing.
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21-10131 Opinion of the Court 5
finding about whether the new group membership was a central
reason for the asserted persecution, and the BIA cannot make new
factfindings on appeal. See Finnegan v. Comm’r of Internal Reve-
nue, 926 F.3d 1261, 1273 (11th Cir. 2019) (stating courts may en-
force waiver rules to prevent parties from sandbagging by raising
new claims on appeal after an initial lack of success); see Zhou Hua
Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1314 (11th Cir. 2016) (vacat-
ing the BIA’s opinion after it engaged in independent factfinding).
Moreover, the BIA’s rule against reviewing new PSGs offered on
appeal is consistent with appellate courts’ typical practice of refus-
ing to consider new issues on appeal. See Access Now, Inc., 385
F.3d at 1331. Moreover, due process requires only that Cam-
poverde-Panora be given notice and an opportunity to be heard.
See Hakki, 7 F.4th at 1030 n.13. She was given the opportunity to
articulate her situation to the IJ and did not object to the IJ’s defini-
tion of the PSG in which she claimed membership.
Finally, even if the BIA erred by refusing to consider the new
PSG on appeal, Campoverde-Panora cannot show substantial prej-
udice from this error. See Lonyem, 352 F.3d at 1341-42. Because
she conceded in her testimony that she did not know the identity
of the individual who persecuted her or why he was doing so, she
necessarily cannot prove her membership in the new PSG was a
central reason for his criminal acts against her. See Sanchez-Castro
v. U.S. Att’y Gen., 998 F.3d 1281, 1286 (11th Cir. 2021) (stating to
show persecution “on account of” a protected ground, which is
known as the “nexus” requirement, “[a]n applicant must establish
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6 Opinion of the Court 21-10131
that a protected ground ‘was or will be at least one central reason
for persecuting the applicant,’” and “[a] reason is central if it is ‘es-
sential’ to the motivation of the persecutor”). Accordingly, we
deny her petition for review. 3
PETITION DENIED.
3 Neither Campoverde-Panora’s argument that her new PSG is cognizable,
nor the Government’s arguments that the original PSG is not cognizable and
Campoverde-Panora did not show persecution on account of the original PSG
are properly before this Court. Because the BIA never considered the newly
proposed PSG, the issue of whether it is cognizable under the INA is not
properly before this court. See Gonzalez, 820 F.3d at 403 (stating we do not
“consider issues that were not reached by the BIA”). Additionally, because
Campoverde-Panora does not raise any challenge to the cognizability finding
the BIA reached regarding the original PSG, that issue is abandoned. See
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (explain-
ing when a petitioner fails to offer argument on an issue on appeal to us, that
issue is abandoned).